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Barnthouse v. Berryhill

United States District Court, D. Colorado

February 9, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Scott T. Varholak, United States Magistrate Judge.

         This matter is before the Court on Plaintiff Jonathan Barnthouse's Complaint seeking review of the Commissioner of Social Security's decision denying Plaintiff's application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act (“SSA”), 42 U.S.C. §§ 401 et seq., and 1381-83c, respectively. [#1] The parties have both consented to proceed before this Court for all proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c) and D.C.COLO.LCivR 72.2. [#14] The Court has jurisdiction to review the Commissioner's final decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). This Court has carefully considered the Complaint [#1], the Social Security Administrative Record [#12], the parties' briefing [##16, 17, 18], and the applicable case law, and has determined that oral argument would not materially assist in the disposition of this appeal. For the following reasons, the Court REVERSES the Commissioner's decision and REMANDS for further proceedings.


         A. Five-Step Process for Determining Disability

         The Social Security Act defines disability as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”[1] 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just his underlying impairment.” Lax, 489 F.3d at 1084. “In determining whether an individual's physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility . . ., the Commissioner [ ] shall consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity.” 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).

         “The Commissioner is required to follow a five-step sequential evaluation process to determine whether a claimant is disabled.” Hackett v. Barnhart, 395 F.3d 1168, 1171 (10th Cir. 2005). The five-step inquiry is as follows:

1. The Commissioner first determines whether the claimant's work activity, if any, constitutes substantial gainful activity;
2. If not, the Commissioner then considers the medical severity of the claimant's mental and physical impairments to determine whether any impairment or combination of impairments is “severe;”[2]
3. If so, the Commissioner then must consider whether any of the severe impairment(s) meet or exceed a listed impairment in the appendix of the regulations;
4. If not, the Commissioner next must determine whether the claimant's residual functional capacity (“RFC”)-i.e., the functional capacity the claimant retains despite his impairments-is sufficient to allow the claimant to perform his past relevant work, if any;
5. If not, the Commissioner finally must determine whether the claimant's RFC, age, education and work experience are sufficient to permit the claimant to perform other work in the national economy.

See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005); Bailey v. Berryhill, 250 F.Supp.3d 782, 784 (D. Colo. 2017). The claimant bears the burden of establishing a prima facie case of disability at steps one through four, after which the burden shifts to the Commissioner at step five to show that claimant retains the ability to perform work in the national economy. Wells v. Colvin, 727 F.3d 1061, 1064 n.1 (10th Cir. 2013); Lax, 489 F.3d at 1084. “A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis.” Ryan v. Colvin, 214 F.Supp.3d 1015, 1018 (D. Colo. 2016) (citing Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991)).

         B. Standard of Review

         In reviewing the Commissioner's decision, the Court's review is limited to a determination of “whether the Commissioner applied the correct legal standards and whether her factual findings are supported by substantial evidence.” Vallejo v. Berryhill, 849 F.3d 951, 954 (10th Cir. 2017) (citing Nguyen v. Shalala, 43 F.3d 1400, 1402 (10th Cir. 1994)). “With regard to the law, reversal may be appropriate when [the Commissioner] either applies an incorrect legal standard or fails to demonstrate reliance on the correct legal standards.” Bailey, 250 F.Supp.3d at 784 (citing Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir.1996)).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (quoting Lax, 489 F.3d at 1084). “Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.” Grogan, 399 F.3d at 1261-62 (quoting Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992)). The Court must “meticulously examine the record as a whole, including anything that may undercut or detract from the [Commissioner's] findings in order to determine if the substantiality test has been met.'” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (quotation omitted). The Court, however, “will not reweigh the evidence or substitute [its] judgment for the Commissioner's.” Hackett, 395 F.3d at 1172.


         Plaintiff was born in 1975. [AR 85][3] Plaintiff completed high school and four years of college education. [AR 203] Plaintiff is able to communicate in English.[4] [AR 201] On March 25, 2014, Plaintiff filed a Title II application for DIB and a Title XVI application for SSI. [AR 12, 85] In both applications, Plaintiff claimed a disability onset date of November 27, 2010, and thus Plaintiff was 35 years old at the time of the alleged onset. [AR 12, 85-86] Plaintiff claims disability based upon physical and mental impairments, including, but not limited to, a lower back injury, neck, right knee, right ankle, and hip impairments, arthritis, depression, and post-traumatic stress disorder (“PTSD”). [AR 85] Plaintiff worked in a variety of positions prior to the alleged disability onset date, including as a teacher and a stage technician for an entertainment business. [AR 220] Plaintiff worked as an accounts executive at a camera and lens manufacturer from February 2008 until November 27, 2010, the alleged onset date. [See AR 198, 204, 220] Plaintiff attempted to return to work sporadically in 2012 and 2013, including as a salesman for a television and satellite company, a driver for a hospitality business, and a driver for an agricultural farming operation, but he did not work at these positions for more than a period of a few months, and sometimes for only a matter of days. [AR 196, 198, 204, 220] Plaintiff's most recent prior work experience was as a driver for an oil fracking and delivery company for less than two months between the end of 2013 and the beginning of 2014. [AR 185-86, 220, 638]

         A. Medical Background

         Plaintiff has a long history of various struggles with his mental health, including alcohol abuse and attempts at detoxification and treatment, as well as neck and back pain. The Court includes an overview of Plaintiff's medical history with respect to each condition below.

         1. Alcohol Abuse and Mental Health

         Plaintiff was admitted to an alcohol rehabilitation program in November 2012 [AR 424] after admissions to the Denver Health Medical Center in July, August, and October of 2012 for alcohol detoxification [AR 345, 370-409]. He graduated from the program in December 2013, but relapsed in February 2014. [AR 605]

         Plaintiff presented for outpatient treatment for binge drinking following his relapse. [AR 580-598] He was assessed for anxiety, depression, PTSD, abuse and trauma in March 2014. [AR 580, 588-89] In April 2014, Plaintiff reported that he had been sober for 60 days, but also reported hearing sounds and inner voices, experiencing spiritual visions, and his belief in extrasensory perception (“ESP”). [AR 595] Plaintiff was assessed with mood disorder not otherwise specified (“NOS”), alcohol dependence, and other conditions, and his provider discussed with him the option of treatment with antidepressants and mood stabilizers. [AR 597-98]

         Psychologist Russell Thye, Ph.D., completed a consultative examination report of Plaintiff at the direction of the Disability Determination Services on August 6, 2014. [AR 637-42] Dr. Thye noted that Plaintiff had post-trauma symptoms and a history of substance abuse, unusual thinking, hallucinosis, and mood disorders. [AR 637] Dr. Thye stated that Plaintiff was cooperative, had a good attitude, drove himself to the exam, and that his grooming, hygiene, and dress were appropriate. [Id.] Plaintiff reported depression, anxiety, feeling melancholy, loss of motivation, and being socially isolated with the exception of his roommates. [AR 639-40] Plaintiff also described occasionally hearing voices or seeing visions consistent with his spirituality. [AR 640] Dr. Thye concluded that Plaintiff had relatively mild PTSD, adjustment disorder with anxiety and depressed mood, and moderate alcohol use disorder, in remission. [AR 641] Dr. Thye found that Plaintiff's “primary barrier to work appears to be related to back, neck and shoulder pain rather than anxiety and depression.”[5] [AR 641] Dr. Thye also concluded that Plaintiff's ability to maintain concentration, acceptable work attendance, adapt to new situations, and follow short, simple instructions were all moderately impaired in light of Plaintiff's difficulties with concentration and history of learning problems. [Id.]

         Dr. Anthony Gottlieb, a State agency psychological consultant, reviewed Plaintiff's record in August 2014. [See AR 97] Dr. Gottlieb found that while Plaintiff may have some limitations due to his mental health conditions, these limitations were “not at the marked level.” [AR 92] Dr. Gottlieb concluded that Plaintiff “retain[ed] the mental ability to do work involving some skills but not involving more complex duties, ” and that Plaintiff could be expected to do work that would require up to 6 months of time to learn the necessary techniques, acquire information, and “develop facility needed for an average job performance.” [AR 97]

         A few months later, in October 2014, Plaintiff was again admitted to the emergency department and assessed for alcohol intoxication. [AR 750] Providers noted that Plaintiff could have “other underlying psych disease[s], ” that he had “extreme flight of ideas, ” was “very tangential in speaking, ” and was hallucinating. [Id.] In December 2014, Plaintiff was evaluated for depression, potentially “related to . . . stressors including back pain [and] sobriety.” [AR 806; see also AR 809-10]

         Plaintiff began to see Dr. Thye for therapy beginning in February 2015. [AR 817] During the first few months of treatment, Dr. Thye noted that Plaintiff was able to maintain “anxiety and depression at fairly low levels, ” despite Plaintiff's financial difficulties, including homelessness [AR 819], and that Plaintiff was working hard to maintain his sobriety [AR 820]. However, in April 2015, Plaintiff was admitted to Centennial Peaks Hospital with severe manic behavior, including rapid and nonsensical speech and flight of ideas. [AR 717] Plaintiff's behavior prior to the hospitalization had prompted his roommates to call the police, and when police responded to bring Plaintiff to the hospital, they drew firearms. [Id.] Plaintiff was agitated in the emergency room, pulled out his IVs, and attempted to leave. [Id.] Plaintiff eventually stabilized after a six-day hospitalization. [Id.] Upon his release, Plaintiff presented to a mental health clinic, where he was evaluated as being able to care for himself, but as having less than adequate functioning in daily activities. [AR 781, 785]

         Dr. Thye reported that Plaintiff was manic again during an appointment on May 12, 2015, and had come to the session appearing unshaven, to have lost weight, and generally unwell. [AR 717, 823-24] Plaintiff was irrational in his speech and thought process. [Id.] When Dr. Thye communicated his concerns, Plaintiff abruptly left for a surgical appointment with Dr. William Biggs. [AR 717; see also AR 709] Dr. Thye followed up with Dr. Biggs[6] and called the police seeking a welfare check and hospitalization of Plaintiff, though the police did not follow through. [AR 717, 823-24] Plaintiff's behavior prompted Dr. Thye to change Plaintiff's diagnosis to bipolar I disorder, with the most recent episode being manic and severe with psychotic features. [AR 823-24] By June 8, 2015, Dr. Thye reported that Plaintiff's mania had subsided [AR 825], and over the next few months Dr. Thye noted that Plaintiff was open to interventions, making progress, and actively involved and proactive in his treatment [AR 826-28].

         On November 3, 2015, Dr. Thye submitted a letter on Plaintiff's behalf, describing Plaintiff's treatment history and noting that in addition to Plaintiff's manic episodes, his primary barrier to working was “physical pain due to significant back and shoulder pain.” [AR 717-18] Dr. Thye explained that Plaintiff would shift in his seat during appointments more than anyone he had ever seen, including in his time completing disability evaluations over the past 10 years. [AR 718] Dr. ...

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